Progress on Advance Requests for MAiD

Dawn Curran urges the new Federal Government to amend Canadian legislation on medical assistance in dying to permit advance requests.

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The Canadian law on medical assistance in dying (MAiD) does not allow advance requests for persons at risk of losing their decision-making capacity. An advance request is a request by a competent person for MAiD to be honoured after they lose their capacity to provide consent. During the recent election campaign, Prime Minister Trudeau promised that his government would improve the law on MAiD. Making advance requests legal would be an improvement.

The consequence of not including advance requests under the law is that many Canadians are forced to play a “cruel game of chicken” with their lives. This game has left many Canadians toeing the line between life and death, and too many have been pushed over too soon.

Under current legislation, two safeguards make it challenging for Canadians to access MAiD. The first is the requirement for consent to be provided both at the time of request and provision of MAiD and the second is the need for ten days to pass between both occasions. The waiting period may be shortened when there is a risk of the loss of capacity. But the person must still be capable of providing consent at the time of provision.

Photo Credit: Nick Youngson. Image Description: A gavel and an engraved desk plate saying “Assisted Dying”.

The case of Audrey Parker is an example of the cruel game of chicken. Parker was diagnosed with incurable stage-four breast cancer that spread to the lining of her brain. At the time of her diagnosis, Parker was considered, under the law, a competent person. However, with the cancer spreading to her brain, she was at risk of losing her decision-making capacity. Parker ended her life prematurely in fear that she would have her right to medical assistance in dying retracted by federal law due to her anticipated loss of legal capacity to provide a second consent.

A recent court decision in Quebec Superior Court involving Montrealers Jean Truchon and Nicole Gladu, and the government’s position in Lamb v. Canada in British Columbia have already changed the MAiD law. These cases have effectively struck down the criterion that death must be reasonably foreseeable. Prime Minister Trudeau has said that he has no intention to appeal the ruling in the Truchon and Gladu case. Trudeau’s new government could make further progress by allowing advance requests.

Some challenges in permitting advance requests are outlined in a report prepared for the government by the Council of Canadian Academies. An amended law should be framed to address these challenges so that Canadians, unlike Parker, do not end their lives prematurely at the expense of time with their family and friends.

The Council report envisions three scenarios for advance requests. This first scenario involves advance requests when the patient has been found eligible for MAiD by two MAiD assessors and is at risk of losing their capacity to consent during the ten-day waiting period. In the event that a person loses their capacity during this period, it is unlikely that someone who has made an advance request for the administration of MAiD when they lose capacity would change their mind given the short period of time and their state of irreversible decline in health.

The second scenario involves advance requests made after diagnosis but before MAiD eligibility assessments. In this scenario, the directive is made much earlier than in the first case. Because of this, there are concerns about a person’s ability to predict how their wishes may change over time. The role of substitute decision-makers in advanced requests is unclear and would have to be clarified by legislation. It might be challenging for substitute decision-makers to determine the point in a person’s decline at which they wish to receive MAiD. There might also be situations where the person’s wishes after loss of capacity are incongruent with those expressed in their request for MAiD.

In the third scenario, eligibility and advanced requests are made before any diagnosis. In such a situation, persons do not have knowledge of their disease at the time of their request. For this reason, their written request for MAiD may have similar challenges as those discussed in scenario two. Importantly, healthy people may not update their advance request for MAiD to reflect their wishes, which may change following significant life events such as the birth of a child.

The Parker case is an example of scenario one, the least controversial case of the three scenarios. In a recent interview, Trudeau acknowledged that the government must “take more steps to move forward” with MAiD in a way that is responsive to the needs of an evolving Canadian society. A step forward should aim to protect the rights of Canadians who are assessed and approved for MAiD and whose capacity to provide a second consent is threatened by their disease.

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Dawn Curran is a Master of Public Health student at Memorial University of Newfoundland.